Memorandum from Winner to Williams, Guinier, Klein, Suitts, and Chambers; Petition for Declaratory Judgment and Application for Injunction

    5-,2'f,t

I,TEMORAI.IDIIM

TO:

FROM:
RX:

DATE:

Napoleon Williams, Lani Guinier, Richard Klein,
Steve Suitts, & J. LgVonne Chambers
Leslie J. Winner tjt^/
Cavanaeh v. BrockW

The attached is for your
intervene in this proceeding.
attempting to have it removed
what you think.

inf ormation. We may \f,ant
Defendants are currently

to Federal CourE. Let me

to

know



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NORTH CAROLINA

hIAKE COUNTY ;
t

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JoHN J. CAYAIIASH,. JoHN W. FARE, JOHN M.
HESTER, RICHARD V. LINVILLE, WILLIAT.,I W. LIN-
VILLE, JOHN'THENRY MURMY, J. G. NEAL, VI. E.
NEAL, CHARLES PIERCE, FMNK E. RHODES , H. GRAY
SVIAIN, ROGER P. SWISHER and W. GMDY SWISHER,

Plaintiffs,
vs.

ALEX K. BROCK (Executive Director, North
Carolina State Board of Elections), ROBERT W.
SPEAR.MAN, MRS. ELLOREE M. ERI^IIN, MRS . RUTH T.
SEI"IASHKO, WILLIAM A. MARSH, JR., and ROBERT R.
BROI^INING (Members, North Carolina State Board
of Elections).

Defendants

IN THE GENEML COURT OF JUSTTCE
SUPERIOR COURT DIVISION

83C_V_cv

PETITION FOR DECLARATORY
JUDGI'IENT AND APPLICATION

FOR INJUNCTION

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I

NATURN OF ACTION

This is a civil proceeding brought against the North Carolina

State Board of Elections seeking a declaratory judgment and an in*
junction restraining them from implementing any redistricting plan

for General Assembly elections pertaining to Forsyth County which

would violate the mandate of the North Carolina constitution

(Arricle II, S 3(3) and 5(3)) forbidding the division of counties

in the formation of Senate and Reoresentative Districts.

II

PARTIES DEFENDANT

The defendant Alex K. Brock is Executive Secretary and the



remaining defendants are members of the North Carolina State Board

of elections, an independent, quasi judicial agency with general

supervision over the primaries and elections in the SEate, including

those within Forsyth County, the particular duties of which Board

include inter alia, the preparation and distribution of balIots,

the certification of names and candidates to be on said ball-ots and

the declaration of results of primary and general elections all in

accordance vrith G. S. L63-22.

III

PARTIES PLAINTIFF

The plaintiffs are all citizens and residents

and are regisEered voters of Forsyth County.

of Forsyth County

IV

STANDING TO SUE

The plaintiffs are injured by the proposed redistricting plans

in respects more direct and specific than the general ciEizenry of

North Carolina in that:
(a) The plaintiffs John M. Hester, John Henry Murray, John W.

Fare and J. G. Neal are citizens, residents and registered voters

of Belews Creek Township and Forsyth County. Their right to vote

for candidates for the North Carolina Senate and North Carolina

House of Representatives fo represent Forsyth County will be denied

if the redistricting plans described herein are placed into effect,

and their votes will be watered down, diluted, and'submerged in

the vastly more numerous Guilford County voEes in the district to

which they have been assigned under the said redistricting pIans.



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. (b) The p1-aintiffs lI. E. Nea1, H. Gray Sr.rain, I^lilliam I^1.

Linvill-e, and Charles Pierce are citizens, residents and registered

voters of Sal-em Chapel Township and Forsyth County. Their right
to vote for candidates for Ehe North Carolina House of Representatives

to represent Forsyth County witl be denied if the redistricting plans

described herein are placed into effect, and their votes will be

watered down, diluted and submerged in the vastly more numerous

Guilford County votes in the district to which they have been assigned

under the said redistricting plans.

(c) The plaintiff Frank E. Rhodes is a member of the North

Carolina House of R.epresentatives representing all of Forsyth County,

including the affected townships. He himself is a citizen, resident

and registered voter of Forsyth County and 01d Torun Township. Re-

presentative Rhodes is a plaintiff as duly constituted representative

of the people of Forsyth County and as a declared candidate for elec-

ton to the }trorth Carolina House of RepresentaEives who is threatened

with the loss of a substantial part of his constituency should the

said redistricting plans be placed in effect.
(d) Richard V. Linville and InI. Grady Swisher are members of the

Forsyth County Board of County Commissioners representing all of

Forsyth County, including the affected tovrnships. They are themselves

citizens, residents and registered voters of Kernersville Tovn:ship

and Forsyth County whose righE to vote for candidates for the North

Carolina Senate to represent Forsyth Couunty will be denied if the

redistricting plans described herein are placed into effect, and

their votes will be watered down, diluted and submerged in the vastly

more numerous Guilford County votes in the district to which they

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have been assigned under the said redistricting plans. Moreover,

as duly constituted representatives of the people of Forsyth County,

they oppose on behalf of the citizens of Forsyth County the loss of
any effectual voice in the election of Senators by the residents
of Belervs Creek and Kernersville Township, and the loss of any effec-
tual voice in the election of representatives by the residents of
Belews Creek and Sa1em Chapel Townships.

(e) The plaintiff John J. Cavanagh is a member of the North

Carolina Senate, representing all of Forsyth County, including the

affected townships. He himself is a citizen, resident and registered

voter of Forsyth County and Winston Township. Senator Cavanagh is
a plaintiff as duly elected representative of the people of Forsyth

County and as a declared candidate for the General Assembly who is
threatened with the loss of a substantial part of his constituency

should the said redistricting plans be placed in effect.
(f) Roger P. Swisher is duly elected I.{ayor of Kernersville,

an incorporated town in Kernersville Township, Forsyth County. He

is a citizen, resident and registered voter of Kernersvil-le Township

and Forsyth County whose right to vote for candidates for the North

Carolina Senate to represent Forsyth CounEy wiII be denied if the

redistricting olans described herein are placed. in effect, and his

vote and that of the citizens of Kernersville will be watered down,

diluted and submerged in the vastly more numerous Guilford County

votes in the district to which he has been assigned under the said

redistricting plan. He and the citizens of Kernersvill-e will have

no specific representative to champion 1oca1 legislation of interest

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to their community especially when such legislation may be of

little interest to or be opposed by the residents of Guilford

County.

V

FACTS

At a special session of the North Carolina General Assembly

held in FebruzTy, L982, the General Assembly enacted apparently in

attempted compliance with Article II, SS 3 and 5 of the North

Carolina Constitution, revisions of the House of Representatives.

and Senate Districts, knovnn to "House Bill l" and "senate BilI 1"

respectively

VI

Copies of the legislation referred to in paragraph V are

attached hereto as Exhibits A and B and made a part hereof.

VII

In its attempted revision of the House of Representative Dis-

tricts, the General Assembly combined in House District 29, eleven

tovn'rships in Guilford County with Belews Creek and Salem Chapel

Township in Forsyth County, thus dividing Forsyth County in the

formation of thaE representative district.

VIII

House district No. 29 as now constituted by the North Carolina

General Assembly clearly is in violation of Article II S 5 (3) of Ehe

North Carolina Constitution which states:

" (3) No County shall be divided in the formation
of a representative district."

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Tn its attempted revision of the Senate districts, the

General Assembly combined in Senate district l-9, Ewenty-one

townships in Guilford County with Kernersville and Belews Creek

Townships in Forsyth County, thus dividing Porsyth County in

the formation of that Senate district.

x

Senate districL L9 as now constituted by the North Carolina

General Assembly clearly is in violation of Article II, S :(S) of

the NorthCarolina ConsEitution which states:

" (3) No County shall be divided in the formation
of a senate district."

XI

IRREPARABLE INJURY

Should defendants place into effect the legislation described

in paragraph VI, in contravention of Ehe North Carolina Constitution,

the plaintiffs wil-l suffer immediate and irreparable injury of a

real and direct nature in that, among other things,

(a) As voters of Belews Creek and Salem Chapel Townships,

comprising 9,368 persons, they will be effectivel-y disenfranchised

in elections for the State House, by being amalgannated into an urban

Guilford County population of 38,187, with whom they have littIe

historic, economic or political ties or common interests.

(b) As voters of Kernersville and Belews Creek Townships

comprising 19,087 persons they will be effectively disenfranchised

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in elections for the State Senate by- being amalgamated into a

Guilford county population of 92,7L4, with whom they have little
historic, economic or political ties or common interests.

(c) As voters of Forsyth County thus combined with much more

numerous Guilford voters as aforesaid, they will have little voice

in championing locaL legislation affecting their own county, BS-

pecially local legislation which may not be of interest to Guilford
County.

(d) As voters of Forsyth County they will be deprived. of 41"

assistance of the voters of Belews Creek, Kernersville and Salem

Chapel Townships in electing representatives and senators who re-

present the interests of that county, although the voters of Belews

Creek, Kernersville and Salem Chapel Townships will for all purposes

other than said elections remain citizens of Forsyth County.

(e) Conversely, as voters of Belews Creek and Kernersville
Townships they will not participate in electing State Senators of

Forsyth County, and as voters of Belews Creek and Salem Chapel

Townships they will not participate in electing state representatives

of Forsyth County, in spite of the fact that since 1849 they have

participated as citizens of Forsyth County in law enforcement,

sanitaLion, health, recreation and the paying of taxes; and said

Forsyth County representatives and senators, whom they are deprived

of the right to elect, will sponsor local legislation affecting

them

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XII

INADEQUATE REMEDY AT LAW

The defendants, as plaintiffs are informed, believe and

therefore all-ege, are planning to proceed with primary elections
in accordance with the unconstitutional plans described above,

which elections are scheduled to be held on June 10, L982. The

plainttffs have no adequate remedy at law if injunctive relief
is not provided.

XIII
DECLARATORY JIIDGMENT AND CLASS ACTION

The plaintiffs bring this action on behalf of themselves and

of all other persons similarly si,tuated pursuant to Rule 23 of the

North Carolina Rules of Civil Procedure. The class plaintiffs seek

to represent includes the 243,683 citizens of Forsyth County, and

more particularly the 3,396 residents of Belews Creek Township, the

5,271 residenLs of Salem Chapel Township, and the L4,g2O residents
of Kernersville Township who are being joined in the redistricting
plan to essentially Guilford county popul-aces. This class is so

numerous that joinder of aIL members is impractical. The questions

of law and fact involved are common and the claims made are typicaL.

of the claims of the class. Plaintiffs will adequately represent

and protect the interests of the aforesaid class.

The plaintiffs are entitled to a declaratory judgment adjudging

the legislative enactments described herein unconstitutionaL, and a

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preliminary and permanent injunction restraining the defendants

from implementing any redistricting plan pertaining to Forsyth

County which would violate the clear mandate of Article II, S 3 (3)

and 5(3) of the Lrlorth Carolina Constitution.

I,HEREFORE, Plaintiffs pray the Court that:

1. The Court declare the legislation attached hereto as

Exhibits A and B, and which purports to redistrict the State of

North Carolina to be unconsitutional insofar as iE pertains to

Forsyth County

2. The Court issue preliminary and permanent injunctions

against the defendants jointly and severally, restraining them

from taking any steps to implement or put into effect such legis-

lation insofar as it pertains to Forsyth County.

3. The Court award these plaintiffs such other and further

relief as to the Court rnay seem just and oroper.

4, The Court award the plaintiffs their costs

OF COUNSEL:

WHITING, HORTON
450 NCNB Plaza
Wins ton-SaIem,
(9L9) 723-L826

AND HENDRICK

N.C.27LOL

WAYNE T. ELLIOIT, ESQ.
SOUTHEASTERN LEGAL FOUNDATION
I800 Century Boulevard, Suite 950
Atlanta, Georgia 30345
(40+1 32s-22ss

orton, Jr.
Attorney for Plaintiffs

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